Opinion
E043054
8-29-2008
THE PEOPLE, Plaintiff and Respondent, v. LINETTE DIANE LUNA, Defendant and Appellant.
Jean Matulis, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Steve Oetting and Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published
Defendant Linette Luna was convicted of first degree murder, a violation of Penal Code section 187, subdivision (a). The prosecution proceeded on a felony-murder theory, i.e., that the murder was committed during the commission of a carjacking, a violation of section 215.
All further statutory references will be to the Penal Code unless otherwise indicated.
Defendant was sentenced to an indeterminate term of 25 years to life in prison. However, the trial court recommended that she be given early release on parole at her first parole hearing.
Defendant appeals, contending that the trial court erred in failing to instruct the jury with CALJIC No. 3.31, entitled "Concurrence of Act and Specific Intent." She also contends that the trial court erred in allowing certain evidence to be presented to the jury.
Finding no prejudicial error, we affirm.
FACTS
The victim, Keith Parks, was killed by a shotgun blast about 4:25 a.m. on July 17, 2004. His body was found 35 to 40 feet in front of a home in Redlands.
Two occupants of the home, Hector Rivera and Maria Camargo, testified that they had been using drugs with Parks prior to the shooting. At some point defendant and a man came to the home and asked for Rivera or Parks. Parks was not there at the time, and the two individuals left. Shortly thereafter, Parks returned. Defendant and the man also returned to the home. Defendant called for Parks and they talked outside for about 10 minutes. Parks then came back into the house and told Rivera and Camargo that he was going to get some money or paperwork from his home, and that he would return in a little while. Parks went outside; Rivera and Camargo heard a gunshot and saw someone driving away in Parkss car. Rivera and Camargo walked to a nearby convenience store and called police.
Defendant was interviewed by Redlands police officers at 8:30 p.m. on the day of the shooting. An audiotape of the interview, which was over three hours long, was played for the jury. Defendant told the officers that she went to Riveras home about 1:30 the previous morning to check on his welfare at the request of Brian Garcia (Riveras nephew), an incarcerated friend of hers.
Under questioning, defendant admitted that another purpose of her visit was to attempt to collect money that Parks allegedly owed to Garcia. She eventually admitted that she took a friend with her, Stomper, in order to provide the "muscle" to help collect the debt by scaring Parks. She denied she had any intent to hurt Parks; however, she knew that Stomper was carrying a gun with him. Defendant also admitted that if she was unable to collect the money from Parks, they intended to take Parkss car as collateral for the debt.
Stomper is the nickname for Mario Valderrama. He was also referred to in the interview as Thumper and Stumper. For convenience, we will use the name Stomper.
Denise McGowen, defendants cousin, testified that Stompers real name was Mario Valderrama. She identified Stomper as a gang member from Rialto who would commonly carry a shotgun. She introduced Stomper to defendant.
An officer testified about other statements McGowen made concerning her conversation with defendant the morning after the shooting. At that time, the stolen car was in McGowens garage and defendant told McGowen: "I wanted my money, that is all I wanted the car for was my money." McGowen also told the officer that Stomper always carried the shotgun with him.
Defendants sister, Rebecca Ruiz, testified that defendant had told her about the confrontation in Redlands after defendant was in jail. An officer subsequently testified to other statements made by Ruiz to him concerning defendants statements about the confrontation. In addition, the officer testified that Ruiz told him that she had seen Stomper with a shotgun.
Defendants friend, Jeanetta Jimenez, testified about a conversation in which defendant told her what had happened on the night of the killing. An officer testified that Jimenez had given further details of the conversation when interviewed by the officer.
Defense counsel argued that defendant did not intend that Stomper would hurt Parks or engage in a carjacking. Counsel emphasized that defendant had testified that Stomper "[took] over the situation" and hit Parks before shooting him and taking his car. Counsel also pointed to evidence that defendant was surprised and angry at the violence, to support counsels argument that defendant never intended to take the car by force or violence.
The jury rejected the argument and found defendant guilty under the felony-murder rule.
DISCUSSION
A. The Trial Courts Failure to Instruct with CALJIC No. 3.31.
Section 20 states: "In every crime or public offense there must exist a union, or joint operation of act and intent, or criminal negligence."
CALJIC No. 3.31 (7th ed. 2003) states that in the charged crime, "there must exist a union or joint operation of act or conduct and a certain mental state in the mind of the perpetrator." It goes on to refer to other instructions for the specific mental state required in the charged crime. In this case, the charged crime was murder in the commission of a felony, carjacking. The jury was instructed that "The unlawful killing of a human being, whether intentional, unintentional or accidental, which occurs during the commission or attempted commission of the crime of carjacking is murder of the first degree when the perpetrator had the specific intent to commit that crime." Carjacking requires the specific intent to "either permanently or temporarily deprive the person in possession of the vehicle of his or her possession, accomplished by means of force or fear . . . ." (CALJIC No. 9.46.)
The trial court is required to give CALJIC No. 3.31 sua sponte when a specific intent crime is charged, and a failure to do so is generally error. (People v. Turner (1971) 22 Cal.App.3d 174, 184.)
The People argue that the failure to give CALJIC No. 3.31 is not error when the subject is adequately covered under other instructions. The People rely on People v. Smith (1978) 78 Cal.App.3d 698 (Smith). In that case, defendant argued that the trial court erred by not giving CALJIC No. 3.31. The appellate court responded: "But there is no requirement that the concurrence-of-act-and-intent instruction be phrased in any particular way. Here CALJIC instructions No. 14.50 and No. 14.59 made it clear that the requisite specific intent to steal or to commit an assault by means likely to produce great bodily injury had to exist at the moment of defendants entry into [the victims] apartment in order for the offense of burglary to have been committed." (Smith, at p. 706.)
Based on Smith, the People contend that the subject of the concurrence of act and specific intent was adequately covered in this case by the giving of six other instructions which addressed the issue.
CALJIC No. 3.01, the aiding and abetting instruction, was given: "A person aids and abets the commission or attempted commission of a crime when he or she with knowledge of the unlawful purpose of the perpetrator and with the intent or purpose of committing or encouraging or facilitating the commission of the crime, and by act or advice aids, promotes, encourages, or instigates the commission of the crime." Thus, an aider and abettor has to have the intent to commit the crime, and must act to aid the commission of the crime.
The second instruction was the murder instruction, CALJIC No. 8.10. It told the jury: "Every person who kills a human being with malice aforethought or during the commission or attempted commission of carjacking, a felony inherently dangerous to human life is guilty of the crime of murder in violation of Penal Code section 187."
The third instruction was the felony-murder instruction, CALJIC No. 8.21: "The unlawful killing of a human being, whether intentional, unintentional, or accidental, which occurs during the commission or attempted commission of the crime of carjacking is murder in the first degree when the perpetrator had the specific intent to commit that crime. [¶] The specific intent to commit carjacking and the commission or attempted commission of that crime must be proved beyond a reasonable doubt."
The fourth instruction was CALJIC No. 8.27, describing the relation of an aider and abettor to the felony murder. In relevant part, it states: "In order to be guilty of murder as an aider and abettor to a felony murder, the accused and the killer must have been jointly engaged in the commission of the carjacking at the time the fatal wound was inflicted."
The fifth instruction was the carjacking instruction, CALJIC No. 9.46. In relevant part, it states: "Every person who takes a motor vehicle in the possession of another, from his or her person or immediate presence, or from the person or immediate presence of a passenger of the motor vehicle against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the vehicle of his or her possession, accomplished by means of force or fear, is guilty of the crime of carjacking in violation of Penal Code section 215. [¶] . . . [¶] In order to prove this crime, each of the following elements must be proved: [¶] . . . [¶] [The] person taking the motor vehicle had the intent to either permanently or temporarily deprive the person in possession of the vehicle of that possession." This instruction specifically tells the jury that defendant must have the requisite specific intent at the time of the carjacking.
Following CALJIC No. 9.46, the trial court gave CALJIC No. 2.02. In part, it states: "The specific intent with which an act is done may be shown by the circumstances surrounding the commission of the act. However, you may not find the defendant guilty of the crime charged . . . unless the proved circumstances are not only, one, consistent with the theory that it requires specific intent but, two, cannot be reconciled with any other rational conclusion."
The People conclude that the subject of the concurrence of act and intent was adequately covered by these other instructions, particularly the carjacking instruction, and that the trial court did not err in failing to give CALJIC No. 3.31.
Defendant emphasizes that the omission of CALJIC No. 3.31 was significant because the instructions given generated a question from the jury regarding the definition of intent as stated in CALJIC No. 3.01. Defendant faults the trial court for replying: "I cannot give you any definition beyond that set forth in the instruction." Defendant argues that the trial court should have given CALJIC No. 3.31 at that point, and the fact that the jury asked the question shows confusion and prejudice.
In view of the jury request for a further definition of intent, we agree with defendant that the trial court should have given CALJIC No. 3.31. Under the evidence, the jury must have focused on whether defendant intended to take the car by force if all other means of collecting the debt failed. The evidence established that defendant was shocked and surprised that Stomper actually used his gun to kill Parks. But the evidence also showed that defendant and Stomper discussed taking the car if Parks did not pay them, and defendant told Stomper that, in that case, he should "`[d]o what you got to do" or "`thats on you."
Defendant stated that she meant that Stomper should "do whatever you feel you have to do." Stomper apparently took this to mean that he should shoot Parks and take his car if the debt was not paid immediately.
Since the issue was apparently significant for the jury, and the jury may have been confused on the subject, the instruction should have been given, at least as a response to the jurys request for a further definition of intent, even though the subject was covered by the other instructions which had already been given to the jury.
When the trial court errs by failing to give CALJIC No. 3.31, the error is subject to a prejudice analysis. The question presented is whether the standard of prejudice is the Watson standard or the Chapman standard.
People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).
Chapman v. California (1967) 386 U.S. 18 (Chapman).
In People v. Alvarez (1996) 14 Cal.4th 155 (Alvarez), our Supreme Court held that the trial court erred in failing to give CALJIC No. 3.31 as to one count of the charged crimes. (Alvarez, at pp. 219-220.) It applied the Watson test: "The error, however, does not call for reversal. We believe that a defect of this sort is subject to the general rule for error under California law that reversal requires prejudice and prejudice in turn requires a reasonable probability of an effect on the outcome." (Alvarez, at p. 220.)
Acknowledging Alvarez, defendant nevertheless argues that "improper instruction on an element, as well as complete omission of an element, is subject to the Chapman analysis." Defendant relies on Neder v. United States (1999) 527 U.S. 1. In that case, the United States Supreme Court said: "Having concluded that the omission of an element is an error that is subject to harmless-error analysis, the question remains whether Neders conviction can stand because the error was harmless. In [Chapman] we set forth the test for determining whether a constitutional error is harmless. That test, we said, is whether it appears `beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. [Citations.]" (Id. at pp. 15-16.)
We do not need to determine the effect of Neder on Alvarez because we agree with the People that the error is harmless either under Watson or under the more stringent Chapman standard.
As the People point out, we are obligated to follow our Supreme Courts decision in Alvarez under Auto Equity Sales v. Superior Court (1962) 57 Cal.2d 450, 455.
In Smith, the court applied the Watson standard and found any error non-prejudicial: "But even if we were to hold that CALJIC instructions No. 14.50 and No. 14.59 were not adequate substitutes for an instruction on the concurrence of act and intent as is set forth in CALJIC No. 3.31, the error would not be fatal. The evidence in the instant case was such that there was no room for a finding that the requisite specific intent to steal or to commit an assault by means of force likely to produce great bodily injury could have been formed after defendants entry into [the victims] apartment. Under the evidence, whatever intent defendant entertained existed at the time of entry into the apartment or not at all. Under the circumstances, had CALJIC instruction No. 3.31 been given, it is not reasonably probable that a different result would have been reached by the jury. [Citations.]" (Id. at pp. 706-707.)
The same is true here. Defendant either had the specific intent to take the car at the time she went to Redlands with Stomper, or she did not. Defendant told the officers that she brought Stomper along only to scare Parks, and she firmly denied that she thought that Stomper would hurt or murder Parks. Other witnesses testified that defendant was surprised and angry when she heard the gunshot. But, as the People point out, the aider and abettor is a principal in the crime she intended to facilitate, and defendant admitted to officers that she and Stomper intended to take Parkss car "as collateral" if all else failed. There was no evidence that defendant did not intend to take the car.
Defendant thus admitted that she had the requisite specific intent for carjacking, and no reasonable jury would have found otherwise. Any error in failing to instruct the jury with CALJIC No. 3.31 was harmless error under either Watson or Chapman.
B. The Trial Courts Allegedly Erroneous Admission of Evidence.
Defendant argues that the trial court erred in allowing testimony that Stomper had fired his shotgun at a mattress in an apartment before the killing in Redlands.
As described above, McGowen, defendants cousin, testified that she introduced Stomper to defendant about two weeks before the killing of Parks. She was asked to identify pictures of Stompers shotgun. The prosecutor asked McGowen if Stomper had ever fired his shotgun in her apartment. After receiving an affirmative answer, the prosecutor asked her to identify a picture of a mattress, and asked her whether Stomper had fired into the mattress. Defense counsel said: "I am going to object to this line of questioning. This incident has no relevance to the incident that this trial is focused on."
The objection was overruled and the witness was allowed to testify that Stomper fired into the mattress. The witness was then asked: "Can you tell the jury what happened when that occurred when Stomper fired that shotgun?" Defense counsel again objected on relevance grounds. The prosecutor represented that the testimony was relevant and was allowed to proceed. The trial court stated that if it was not relevant it would be stricken. McGowen then testified to more details of the incident, but she was not allowed to testify about writing on the mattress.
After McGowens testimony, she was contacted by Officer Catren. The officer was allowed to testify that McGowen told him defendant was present at the time the shotgun was fired in the apartment. Defense counsel objected on relevance grounds. The trial court overruled the relevancy objection but stated: "Although, it is hearsay. Sustained on that ground." The prosecutor replied: "But actually I think it is a prior inconsistent statement based on her testimony yesterday she couldnt recall." The trial court responded: "All right. Overruled."
There was no such testimony.
Another officer, Officer Smith, subsequently testified that McGowen told him that defendant was present when Stomper fired the shotgun in the apartment.
The prosecutor asked: "Did Ms. McGowen describe to you an event where Stomper had fired the shotgun and shot a Slurpee out of her hand and the shotgun blast actually hit the mattress?" Defense counsel objected: "I am going to object to this. There is no prior inconsistent statement." (See fn. 7, ante.) Although the trial court sustained the objection, the prosecutor continued to question about the event and elicited testimony that defendant was present at the time without further objection.
As noted above, defendant contends the trial court erred in allowing testimony about this incident. She argues that the testimony was hearsay, and was initially excluded by the trial court on hearsay grounds, although only a relevancy objection was made. She also argues that the testimony was not admissible as a prior inconsistent statement, as argued by the prosecutor, because there was no prior inconsistent statement.
The People argue that a proper hearsay objection was not made at trial to preserve the issue for appeal. The People also contend that any error was harmless because defendant admitted that she knew Stomper was a gang member who carried a shotgun with him, and evidence that defendant was present during the incident was subsequently admitted by the testimony of Officer Smith without objection.
We agree with the People that any error in the admission of the testimony was, at most, harmless error under Watson.
Defendant argues that she was prejudiced because the prosecutor, in closing argument, relied on this testimony "to dispel significant evidence that [defendant] had not planned or anticipated a dangerous encounter with Parks, arguing the notion Stomper was not only in the habit of carrying a shotgun, but was known by [defendant] to have actually fired it off."
But defendant admitted, in her statement to police, that she knew Stomper was a gang member, she knew he habitually carried a shotgun and, more importantly, she knew he was armed when they went to Redlands. The fact that she had been present when Stomper fired the shotgun on a prior occasion adds little to her admissions and, as the People point out, the same testimony was subsequently admitted without objection through another police officer witness.
We therefore conclude that, under the Watson test, any error in admitting testimony that Stomper had fired his shotgun on a prior occasion was, at most, harmless error.
DISPOSITION
The judgment is affirmed.
We concur:
KING, J.
MILLER, J.